Saturday, 27 September 2014

Free movement of murderers? EU law aspects of the Alice Gross case

Steve Peers

As British readers of this
blog will know, a potential suspect in the disappearance of teenager Alice
Gross from her London home is a Latvian man, Arnis Zalkalns, who had a previous
conviction for murder in Latvia before moving to the UK. He is now missing and
could potentially be in Latvia.

This raises obvious
questions: how could a convicted murderer move to the UK, without being stopped
or detected? And what could now be done to get hold of Mr. Zalkalns? More broadly,
are there any lessons here about measures which the EU could adopt in the
future, and/or about how the EU laws currently in force could be applied?

Free
movement rules

First of all, how could a
convicted murderer move to the UK? He had served his (absurdly short) sentence under
Latvian law, so was not a fugitive from justice. But that doesn’t mean that he
had the right to move to the UK, or any other Member State. Although UKIP
leader Nigel Farage has claimed that ‘We can’t stop people like this entering
the country’, this is simply not the case.

The starting point here is
the EU’s citizenship Directive, which governs the free movement of EU citizens
between Member States. Free movement is not unlimited. Among other things, the
Directive provides that free movement can be denied on grounds of ‘public
policy, public security or public health’. This applies to entry, exit and stay
in a country. The law states that a criminal conviction cannot automatically justify
blocking free movement rights, but there is a proportionality test to be
applied on a case-by-case basis.

Given that murder is the
most serious crime, and that Mr. Zalkalns’ conviction was quite recent, there
is obviously an extremely strong case that he could have been refused entry. If
he challenged the refusal, it’s hard to imagine that any British court, or the
Court of Justice of the European Union (CJEU), would have been sympathetic.

So why wasn’t he refused
entry? Presumably because the UK authorities weren’t aware of his murder
conviction. There are EU laws on the sharing of criminal records, but they
applied only from 2012, some time after he entered the country. In any case,
they wouldn’t have helped, since they only oblige the Latvian authorities to
inform the UK about any convictions of British
citizens in that country.

The deputy Prime Minister,
Nick Clegg, has claimed that the limited exchange of criminal records information
between EU countries could ‘easily be fixed’. In fact, the history of building criminal or
immigration databases or information exchange systems, either within the UK or
the EU as a whole, shows that they are difficult and expensive to establish and
operate. But it might be possible to focus on sharing information on a very limited
number of the most serious criminal convictions, such as murder and rape, and
only as regards persons who were not imprisoned. (People still in jail can
obviously not exercise free movement rights).

It’s not clear if Mr. Zalkalns
was on parole from the Latvian system. If so, he presumably breached his parole
by leaving the country, and the Latvians should have issued a European Arrest
Warrant to get hold of him. Moreover, there’s an EU law in place for
transferring probation and parole decisions between Member States. It’s mainly
aimed at cases where (for instance) a British tourist has been convicted in
Latvia, and wants to return to the UK to serve his or her probation or parole
period. The EU could think about revising this law to fully cover cases like Mr.
Zalkalns too.

But even if the EU did that,
there’s a problem. The UK simply doesn’t want to apply this law: it has failed to do so by the deadline of 2011 (Latvia has applied it), and is going to opt
out of its obligations as of December 1st this year. I have warned before that the UK government’s intention to opt out of some EU criminal law legislation
might put public safety at risk. This case is a preview of the sorts of
problems that might arise.

There’s another aspect to
this case worth mentioning. Mr. Zalkalns was arrested in 2009 in the UK, for
indecent assault on another teenage girl. This could have been an opportunity
for the UK police to send an inquiry to the Latvian authorities (under the EU’s
rules on mutual assistance in criminal matters) for any further information
about Mr. Zalkalns, on the grounds that it might have helped their investigation
into that case. That would have uncovered his criminal record, which would then
have been grounds for expulsion from the country.

Is the lesson from this case
that (as Nigel Farage suggests) the UK should leave the EU, to ensure that criminals
don’t enter the country? Of course, only a small minority of EU citizens are
criminals. UKIP’s own plans call for the admission of 50,000 foreign workers a year into the UK. Presumably they would also
allow in at least a few tourists, students and family members. And as I pointed out yesterday, their plans
regarding asylum would backfire, leading to more asylum-seekers in the UK, not
fewer. Furthermore, leaving the EU would mean leaving all the rules currently
in place to deal with cross-border criminality, which were applied for instance
in the Jeremy Forrest case involving another teenage girl.

European
Arrest Warrant

If Mr. Zalkalns is now in
Latvia, could the UK authorities issue a European arrest warrant (EAW) to get
hold of him? They have been reluctant to do so, on the grounds that an EAW can
only be issued where prosecution is certain. According
to the UK's Extradition Act, the
authorities in the UK can send a European Arrest Warrant (EAW) to another
Member State, to ask them to arrest a person and send him back to the UK, as
long as 'there are reasonable grounds for believing that the person has
committed an offence' which is serious enough to ask for extradition. Also, the
police must also have issued an arrest warrant for the same person in the UK.
From the information available to the public, it looks as if the police could
make the case that there are reasonable grounds to suggest that Mr. Zalkalns
might have committed an offence. In any case, it's surely worth a try to see if
the Latvian authorities would accept an EAW.

However, the EU legislation on the European Arrest Warrant uses different words. It says
instead that an EAW can only be issued 'for the purposes of conducting a
criminal prosecution'. However, it's arguable that arresting someone that the
police reasonably believe is a potential suspect in a case is part of
'conducting' a prosecution, even if at the end of the day the prosecution
of that suspect might not go ahead if (for example) he turns out to have a good
alibi when questioned.It should
also be recalled that theother language versions of the EU law, which
are equally valid with the English version, might also point in a more flexible
direction, given the nature of other countries' criminal justice systems.

In any event,
the UK authorities could, as an alternative, send a ‘mutual assistance’ request
to the Latvians to obtain Mr. Zalkalns for questioning, on the grounds, even if
he is not necessarily going to be charged immediately, he may have evidence
which could be relevant to the case. In future, the European Investigation
Order will speed up this sort of enquiry.

In conclusion,
it appears that there are lessons in this case both for the EU and the UK. The EU could supplement its existing rules with a system for exchange of information on the
most serious criminal convictions and strengthen , As for the UK, the authorities let pass a
number of prior and current opportunities to get hold of Mr. Zalkalns, find out
about his criminal record or question him to obtain evidence; and the idea of opting out of the EU rules on the transfer of probation and parole decisions needs to be rethought.

It would seem to me in this day and age some very elementary processes could be undertaken to prevent perverse and violent criminals from free movement within the Bloc, namely prevent the issue of passport, serious criminals should be micro chipped, with severe penalties for the removal or interferences of such, each member state should share info on conviction, of serious criminals.